|Native Title Determinations||56|
|Native Title does not exist in the determination area||45|
|Native Title exists in parts of the determination area||6|
|Native Title exists in the entire determination area||5|
|Active Native Title determination applications||37|
|Indigenous Land Use Agreements Registered||11|
|Body Corporate Agreements||0|
The first determination of native title occurred in New South Wales (NSW) when the Dunghutti people were recognised as the native title holders in the Crescent Head consent determination in April 1997. The determination also settled the issue of compensation for the extinguishment of native title rights and interests as captured in the Crescent Head Agreement reached by the Dunghutti people and the NSW government and NSW Aboriginal Land Council in October 1996.
As noted in the overview, non-claimant applications are commonplace in New South Wales due to the intersection between the Native Title Act and the Aboriginal Land Rights Act (ALRA). Non-claimant applications are largely filed by Aboriginal land councils under the ALRA, seeking a determination that native title does not exist to enable them to claim the land as freehold under the ALRA. As at 21 September 2017, 47 non-claimant applications have been determined across the country, 41 of these in NSW.
As a result of the intensive settlement in the state, it has proven difficult to prove the ongoing existence of native title. In 2004, the Federal Court determined that native title did not exist in the Sydney region in the Darug People’s claim. In this case, Justice Madgwick said that “Aboriginal dispossession and cultural changes meant that much of their pre-existing culture was destroyed before it could be recorded, ”contributing" to his inability to find in favour of the claimants."
Further, the 2002 decision by the High Court in Wilson v Anderson meant that approximately 80 million acres, or more than one third of NSW, is not claimable under native title.
As a result of these factors, the settlement of native title claimant applications in this state has been slower than in other jurisdictions. The State Government has had “Credible Evidence Guidelines” in place since 1998 which are used in mediation but these have never been published.
On 29 November 2007 the Federal Court of Australia made a consent determination recognising the Githabul
People’s native title rights and interests over 1120 sq km in nine national parks and 13 state forests in northern New South Wales. The consent determination is recognition that the Githabul People’s native title has always existed, and continues to exist, under their traditional laws and customs.
The consent determination is an important turning point because it recognises the Githabul People’s native title rights under Australian law for the first time.
The Federal Court recognised the Githabul People’s non-exclusive rights to
These areas will continue to be shared by all those with an interest in the area, including members of the public.
The Githabul People’s consent determination followed the signing of an indigenous land use agreement (ILUA) between the Githabul People, the Githabul Nation Aboriginal Corporation and the NSW Government in 2007. The Githabul ILUA is a voluntary agreement that applies to the whole of the determination area and some additional areas. The ILUA sets out:
“It [the determination] gives the United Githabul Tribal Nation recognition,
not only by the Federal Court, but by the NSW Government. This is one
thing that the old people always dreamt of - to be recognised by this State
Government. The reason why we lodged the claim was to give hope and
inspiration to other tribal groups across the Commonwealth. Even though it
took 15 years, it was worth it – we have given hope to other tribes.”
Trevor Close, Githabul Applicant